Exclusive Application of Terms and Conditions.  These terms and conditions constitute the agreement (the “Agreement”) between HYDRO AIR LLC (“Seller”) and the buyer identified on the face of this document (“Buyer”) regarding the goods referenced on the face of this document (the “Goods”). This Agreement expressly limits Buyer’s acceptance to these terms and conditions. Buyer may reject this Agreement by not ordering or receiving any Goods. This Agreement does not constitute an acceptance by Seller of any offer or counteroffer of Buyer, and Seller hereby rejects any additional, different, or inconsistent terms, conditions or limitations contained in or incorporated by reference in any forms, purchase orders or other documents of Buyer that already have been or hereafter may be presented to Seller with respect to this Agreement. If Buyer has submitted or will submit additional and/or different terms and conditions to Seller, or submit a counteroffer to Seller, Seller’s subsequent performance will not be construed as either acceptance of Buyer’s additional and/or different terms and conditions or Buyer’s counteroffer, nor will Seller’s subsequent performance be viewed as a willingness to accept any provision of the Uniform Commercial Code, as adopted by any State or Commonwealth whose law governs this Agreement, that is contrary to any of the terms and conditions hereof. BUYER’S ACCEPTANCE OF ANY TENDER OF DELIVERY CONSTITUTES ACCEPTANCE OF ALL OF THESE TERMS AND CONDITIONS.

Price, Payment & Delivery.  All prices for Goods are those indicated on the face of this document or a separate term sheet incorporated by reference.  The price and terms of this Agreement are confidential and Buyer shall not disclose them to any person or entity without Seller’s prior written consent, other than to essential personnel. Seller reserves the right at any time to demand payment for Goods in advance of shipment. Tender of deliveries made after 30 days from the date of the initial order shall be subject to escalation in prices. Prices are subject to change at any time without notice to Buyer. Prices do not include shipping, insurance, handling or any excise, sales, or other similar taxes and imposts, and Buyer is responsible for paying all excise, sales or other similar taxes and imposts of any type or kind regardless of whether they are collected by Seller. The purchase price for the Goods is due and payable 30 calendar days from the date of invoice or the date of delivery, whichever is sooner. Seller may terminate this Agreement at any time, and Seller may refuse to ship Goods to Buyer if Buyer is in default under this Agreement or any other agreement between the parties.  Any payments not timely received by Seller will accrue interest at a rate of 1 ½% per month, unless not permitted by law, in which case the interest charge shall be the highest rate permitted by law. In order to ensure payment, and in addition to all security interests granted by operation of law, Buyer grants Seller a security interest in all Goods sold pursuant to this Agreement and agrees to allow Seller to sign all documents allowing Seller to perfect this security interest. In the event that such Goods could be deemed to be inventory, Buyer agrees to allow Seller to do all things necessary to perfect its security interest including, but not limited to, notifying existing secured parties and filing a financing statement prior to delivery of the Goods.  If any payment required under this Agreement is past due, Buyer shall be in default and Seller may exercise all of its legal rights and remedies, including those set forth in Articles 2 and/or 9 of the Uniform Commercial Code as adopted in the State or Commonwealth whose law governs this Agreement.  Delivery of Goods is F.O.B. Seller’s point of shipment (Ex Works per INCOTERMS 2000 for international shipments). Title to Goods passes to Buyer on Seller’s delivery to the carrier. Delivery dates are estimates only, and Seller is not responsible for any delays of any type or kind. Seller may cancel this Agreement without advance notice in the event of Buyer’s breach, for failure to give adequate assurances of future performance after Seller’s request for such assurances, or for any other reason in Seller’s sole discretion. Buyer is responsible for obtaining any and all necessary licenses and permits for the transportation or use of the Goods at its sole and exclusive expense.  If Buyer terminates this Agreement, it shall only do so on 30 days’ advanced written notice, and Buyer will remain liable to Seller for all costs, commitments and liabilities incurred by Seller while fulfilling its obligations under this Agreement, including overhead allocated by Seller to such costs and Seller’s anticipated sales revenues from this Agreement. If this Agreement is placed in the hands of an attorney for collection of any amounts due, Buyer shall pay all of Seller’s actual attorneys’ fees and costs of collection.  If Buyer is unable to receive the Goods when they are tendered, Buyer will be liable to Seller for any losses, damages, or additional expenses incurred or suffered by Seller as a result of Buyer’s inability to receive the Goods.

Exclusive Remedy.  Buyer’s EXCLUSIVE remedy against Seller arising out of any defect in a Good tendered to Buyer is the repair or replacement of the Good, or alternatively, at Seller’s sole election, a refund of the purchase price of the Good.  These remedies only will be available to Buyer for one year after the Good is tendered to Buyer, and Seller’s obligations under this section will be void unless Buyer provides Seller with notice of the defect in the Good within 30 days of discovery of the defect.  Any Good returned to Seller for repair, replacement or refund under this Section will be returned by Buyer in accordance with Seller’s return material authorization procedures then in effect.  Seller’s total liability to Buyer with respect to any Good will not exceed the purchase price of the Good. 

Warranty Disclaimer.  REGARDING THE GOODS, SELLER EXPRESSLY AND UNCONDITIONALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF FREEDOM FROM DEFECTS IN DESIGN, MATERIALS, AND LABOR, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY, WARRANTIES AGAINST THE INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, INCLUDING, WITHOUT LIMITATION, ANY PATENTS OR COPYRIGHTS, ANY WARRANTIES AGAINST REDHIBITORY DEFECTS, OR WARRANTIES BASED ON ORAL REPRESENTATIONS FROM SELLER’S PERSONNEL OR AGENTS, AFFIRMATIONS, MODELS, DRAWINGS, SAMPLES, PROMOTIONAL LITERATURE WHETHER IN PRINT, ON THE INTERNET OR IN ANY OTHER FORMAT OR MEDIA.

Limitation of Liability.  SELLER’S MAXIMUM CUMULATIVE LIABILITY TO BUYER SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS CLAIMED TO BE DEFECTIVE.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONTINGENT, PUNITIVE, EXEMPLARY CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES OF ANY TYPE OR KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR LOST GOODWILL, RELATING TO THIS AGREEMENT AND THE GOODS SOLD HERUNDER, THEIR INSTALLATION OR USE, WHETHER IN CONTRACT, TORT, PURSUANT TO STATUTE OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILTY OF SUCH DAMAGES. To the extent that Seller modifies any Goods before or after they have been delivered to Buyer, Seller will only perform such modification in accordance with the written instructions given by Buyer.  Buyer agrees that Seller’s sole responsibility with respect to such modifications is to perform such modifications according to Buyer’s written instructions. 

Product Suitability.  Goods sold by Seller are designed to meet stated U.S. safety standards and regulations.  Because local safety standards and regulations vary significantly, Seller cannot guarantee that the Goods meet all applicable requirements in each locality.  Buyer assumes responsibility for compliance with such safety standards and regulations in the localities in which the Goods will be shipped, sold and used.  Before purchase and use of any Goods, Buyer should review the product application, and national and local codes and regulations, and verify that the use and installation of the Goods will comply with them.

Indemnity.  Buyer shall indemnify and save Seller harmless from and against all claims of any type or kind for personal injury or property damage, including all costs and attorneys’ fees, made or alleged as a result of Buyer in any way or manner incorporating or installing any Good purchased herein into another product manufactured, assembled, sold or marketed by Buyer. Buyer also indemnifies, defends, and saves Seller completely harmless from and against all intellectual property claims and litigation in any way involving Buyer’s use of the Goods sold under this Agreement, including all actual attorneys’ fees and defense costs. Seller may defend any claim for which Buyer is required to indemnify it under this Agreement using counsel of its own choosing but at the sole and exclusive cost and expense of Buyer.

No Design or Other Services Provided.  This Agreement involves the sale of Goods only. Buyer is not hiring Seller to perform any design services or for the production of any drawing or other media relative to the Goods sold pursuant to this Agreement or Buyer’s end product.  To the extent that Seller offers any advice or produces any drawings or other media, Seller does so as a courtesy to the Buyer and Buyer agrees that it will not rely on such advice, drawings or other media and Seller shall not be liable for any matter arising from such advice, drawings or other media.  Buyer shall have no recourse against Seller for any services of any type or kind. Buyer shall be solely and exclusively responsible for use and/or installation of all Goods purchased hereunder.  The Goods sold hereunder are based on Buyer’s descriptions, specifications, models, drawings, and other documents, and Buyer bears sole responsibility for ensuring that the Goods meet Buyer’s needs and expectations and are suitable for Buyer’s intended use. Seller is not responsible for Buyer’s inaccurate or inadequate design or Buyer’s furnishing of incorrect information.

Export Controls/Availability.  Certain Goods may be subject to export controls under the laws, regulations and/or directives of the United States of America and various other countries.  Buyer must comply with such laws and regulations and not export, re-export or transfer these Goods to any country to which such export, re export, or transfer is forbidden or without first obtaining all required authorizations or licenses. 

Force Majeure.  Seller will not be liable for its failure to perform under this Agreement (including, without limitation, the failure to deliver any Goods or perform any Services) due to circumstances beyond its control, including, without limitation, fire, flood, earthquake, pestilence or similar catastrophe; war, act of terrorism, or strike; lack or failure of transportation facilities, shortage of suitable parts, materials or labor; any existing or future law, rule, regulation, decree, treaty, proclamation, or order of any governmental agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or the public enemy; or any other event or cause beyond Seller’s reasonable control, including, without limitation, any delay caused by Buyer (each, a “Force Majeure Event”).  If any Force Majeure Event prevents Seller’s performance of any of its obligations under this Agreement, Seller will have the right to (a) change, terminate or cancel this Agreement, or (b) omit during the period of the Force Majeure Event all or any portion of the quantity of the Goods deliverable during that period, whereupon the total quantity deliverable under this Agreement will be reduced by the quantity omitted.  If Seller is unable to supply the total demands for any Goods to be delivered under this Agreement due to a Force Majeure Event, Seller will have the right to allocate its available supply among its customers in whatever manner Seller deems to be fair and equitable.  In no event will Seller be obligated to purchase materials from other than its regular sources of supply in order to enable it to supply Goods to Buyer under this Agreement.  No change, cancellation or proration by Seller will be deemed to be a breach of any clause, provision, term, condition, or covenant of this Agreement.

Correction of Errors.  Seller shall have the right to correct any errors, whether clerical or mathematical, which are contained in this Agreement or any term sheet or invoice.

Disputes.  All disputes, demands, controversies, and claims of any type or kind, excepting any indemnity obligations owed by Buyer to Seller, shall be decided by arbitration and governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) existing at the time the dispute, demand, controversy, or claim arose.  The award of the arbitrator shall be final and binding, and shall be enforceable in a Court of competent jurisdiction.  The arbitration shall take place in Wilmington, Delaware, unless otherwise agreed in writing, and the arbitrator shall apply the substantive law of the State of Delaware, without reference to any of its conflicts of laws principles. The arbitrator shall specifically enforce and may not modify the terms of this Agreement, except the interest provision. The Arbitrator’s sole power shall be limited to the enforcement of the terms of this Agreement in accordance with applicable law. Unless agreed to between the parties, there shall be no discovery in the arbitration other than document exchange permitted under the Commercial Arbitration Rules. The Panel shall consist of a single arbitrator who shall be a currently practicing attorney with no less that fifteen years experience in commercial and commercial litigation matters including, without limitation, Article 2 of the Uniform Commercial Code. In the absence of agreement by the Parties, the AAA shall select an arbitrator who is knowledgeable about commercial and contract law to hear the arbitrated matter.  The Arbitrator shall provide the parties with a full, reasoned opinion outlining both factual as well as legal conclusions. The award of the arbitrator may not exceed the bounds of authority in this paragraph and shall be consistent with enforcement of this Agreement. 

Miscellaneous.  Buyer shall not assign any rights under this Agreement without the prior written consent of Seller, which may be withheld in Seller’s sole discretion.  Failure to exercise any rights or powers under this Agreement shall not constitute a waiver thereof, and a waiver of any rights or powers on one occasion will not constitute a waiver of the same rights or powers on any subsequent occasion.  No waiver or amendment to this Agreement shall be effective unless it is in writing and signed by authorized representatives of both parties.  This Agreement shall not be modified by any course of dealing between the parties, course of performance, industry custom, or trade usage.  Paragraph headings are for reference purposes only and are of no legal force or effect. All notices shall be provided to the addresses set forth in this Agreement and, if none is provided, to the party’s resident agent in the state of incorporation or organization. The validity, interpretation, and performance of this Agreement and any dispute arising in connection with the negotiation, execution, performance or termination hereof shall be governed and construed in accordance with the laws of the State of Delaware, without reference to any conflicts of law principles. Wherever possible, all terms shall be interpreted consistently.  In the event of a conflict with regard to price, payment terms or delivery, the typed provisions shall control over the printed provisions on this side. For any other conflict, this Agreement shall control. Seller reserves the right to correct any typographical errors anywhere in this Agreement. If any provisions hereof are determined by an arbitration panel or other tribunal to be illegal, invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. 

Entire Agreement.  This is the complete and exclusive statement of the terms and conditions relating to the subject matter of this Agreement and all negotiations and representations, if any, made prior to or contemporaneous with the execution of this Agreement are merged into this Agreement.  Seller shall not be bound by any agent’s or employee’s representations, promises, or inducements not set forth in this writing unless such representation, promise or inducement is set forth in writing, dated subsequent to this Agreement, and signed by an authorized officer of Seller.